Massive home addition causes confusion in Fairfax County neighborhood

[Anonymous]

Anonymous wrote:It does not matter much if it is a Special Permit or a Variance. Both processes allow for public input. The BZA is not mandated to grant one, even if there is a similar precedent example. But more importantly, if either is granted by the BZA, the nextdoor neighbor or any other person with standing can file an appeal to the Circuit Court.

Once this happens, the court takes an entirely different approach than the BZA to evaluating the permit, as has been discussed at length in prior comments. The courts have an extremely strict view of when a Special Permit or Variance should be granted. If some approval is granted, this approval is highly unlikely to hold up if appealed to the courts. The courts can, have, and will overrule Special Permits and Variances issued by BZAs. Obviously this only matters if someone chooses to exercise their right to challenge within 30 days of an approval of a Special Permit or Variance.

Also, you're misstating the appeals process. The court doesn't reevaluate the merits from scratch. The court determines if the BZA followed the law, but defers to the BZA on matters of judgement.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:The plans must have showed the new construction within the setback bounds. That’s why the county approved them without a variance or special permit. Neighbors are notified during those processes so that they can express their opinions. In the interview the neighbors said they received no notice. Therefore, I believe the plans conformed with the county’s building regulations and setback requirements.

I don't think anyone has claimed that they didn't.

Someone up above claimed the approved plans contained the error and the homeowner proceeded with the plans as approved, so it is not the homeowner’s fault.

3) The approved plan, despite already containing the measurement error, provides a solid, albeit not definitely, basis to argue the report was not fully self inflicted. (Which doesn't seem to be a key point anyway if this isn't a variance.)

That was me. Read what you just repeated. I said the submitted plan included the error.

I wasn't addressing who's legally at fault. I was addressing whether the "self-inflicted" precedent applies here. And there's a very plausible argument it doesn't. That's not the same thing as saying the county is legally at fault.

No one is saying that the county is at fault. The quote above says that the approved plans contained the measurement error, which provides a basis to argue that the error was not “self inflicted.” Logically it follows that if the error was not inflicted by the homeowner, he is not at fault.

In another post I asked if the measurements on the plan submitted showed that the wall crossed over into the setback and there was at least one reply saying that the plans did not show that. Is that not the case? It would be interesting to see exactly what the county approved.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:The plans must have showed the new construction within the setback bounds. That’s why the county approved them without a variance or special permit. Neighbors are notified during those processes so that they can express their opinions. In the interview the neighbors said they received no notice. Therefore, I believe the plans conformed with the county’s building regulations and setback requirements.

I don't think anyone has claimed that they didn't.

Someone up above claimed the approved plans contained the error and the homeowner proceeded with the plans as approved, so it is not the homeowner’s fault.

3) The approved plan, despite already containing the measurement error, provides a solid, albeit not definitely, basis to argue the report was not fully self inflicted. (Which doesn't seem to be a key point anyway if this isn't a variance.)

That was me. Read what you just repeated. I said the submitted plan included the error.

I wasn't addressing who's legally at fault. I was addressing whether the "self-inflicted" precedent applies here. And there's a very plausible argument it doesn't. That's not the same thing as saying the county is legally at fault.

No one is saying that the county is at fault. The quote above says that the approved plans contained the measurement error, which provides a basis to argue that the error was not “self inflicted.” Logically it follows that if the error was not inflicted by the homeowner, he is not at fault.

In another post I asked if the measurements on the plan submitted showed that the wall crossed over into the setback and there was at least one reply saying that the plans did not show that. Is that not the case? It would be interesting to see exactly what the county approved.

You're hung up on trying to determine "fault" rather than whether or not this is a sort of mistake that would prevent the homeowner from seeking a variance (which, again, they probably don't even need to do in this case).

Let me try to rephrase. The plans submitted to the county contained an error. Those plans were subsequently approved.

Virginia law precludes individuals from seeking variances for purely self-inflicted hardships, but a setback encroachment that arises through a good-faith reliance on an approved plan is not a purely self-created hardship in the sense addressed by legal precedents. Basically, the county bears some of the blame.

Again, this probably moot anyway. The homeowner probably doesn't need a true variance.

[Anonymous]

Except the homeowner is the GC. The homeowner was responsible for the plans.

[Anonymous]

Anonymous wrote:Except the homeowner is the GC. The homeowner was responsible for the plans.

For these purposes, it doesn't matter. It would still be or not be a "self-inflicted hardship" for the purposes of seeking a variance (although conceivably the GC could be legally liable for the damages). The point is basically that the county picked up some responsibility by approving the plan.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:The plans must have showed the new construction within the setback bounds. That’s why the county approved them without a variance or special permit. Neighbors are notified during those processes so that they can express their opinions. In the interview the neighbors said they received no notice. Therefore, I believe the plans conformed with the county’s building regulations and setback requirements.

I don't think anyone has claimed that they didn't.

Someone up above claimed the approved plans contained the error and the homeowner proceeded with the plans as approved, so it is not the homeowner’s fault.

3) The approved plan, despite already containing the measurement error, provides a solid, albeit not definitely, basis to argue the report was not fully self inflicted. (Which doesn't seem to be a key point anyway if this isn't a variance.)

That was me. Read what you just repeated. I said the submitted plan included the error.

I wasn't addressing who's legally at fault. I was addressing whether the "self-inflicted" precedent applies here. And there's a very plausible argument it doesn't. That's not the same thing as saying the county is legally at fault.

No one is saying that the county is at fault. The quote above says that the approved plans contained the measurement error, which provides a basis to argue that the error was not “self inflicted.” Logically it follows that if the error was not inflicted by the homeowner, he is not at fault.

In another post I asked if the measurements on the plan submitted showed that the wall crossed over into the setback and there was at least one reply saying that the plans did not show that. Is that not the case? It would be interesting to see exactly what the county approved.

You're hung up on trying to determine "fault" rather than whether or not this is a sort of mistake that would prevent the homeowner from seeking a variance (which, again, they probably don't even need to do in this case).

Let me try to rephrase. The plans submitted to the county contained an error. Those plans were subsequently approved.

Virginia law precludes individuals from seeking variances for purely self-inflicted hardships, but a setback encroachment that arises through a good-faith reliance on an approved plan is not a purely self-created hardship in the sense addressed by legal precedents. Basically, the county bears some of the blame.

Again, this probably moot anyway. The homeowner probably doesn't need a true variance.

Maybe the use of the word “fault” is confusing the issue. We are saying the same thing: that if the plans clearly showed that the measurements violated the setback and the county approved said plans, then the homeowner believed there was no error in proceeding.

On the other hand, if the submitted plans showed adherence to the 8 foot setback, then the county approved plans that appeared to comply with the setback rules. In that case, the homeowner did create the problem by having a foundation poured without first having a survey done that ascertained exactly where all the pertinent property lines were located.

Are approved plans available to the public?

What are your legal reasons for believing that the homeowner does not need to apply for a variance, rather than a special permit?

[Anonymous]

Anonymous wrote:

Anonymous wrote:It does not matter much if it is a Special Permit or a Variance. Both processes allow for public input. The BZA is not mandated to grant one, even if there is a similar precedent example. But more importantly, if either is granted by the BZA, the nextdoor neighbor or any other person with standing can file an appeal to the Circuit Court.

Once this happens, the court takes an entirely different approach than the BZA to evaluating the permit, as has been discussed at length in prior comments. The courts have an extremely strict view of when a Special Permit or Variance should be granted. If some approval is granted, this approval is highly unlikely to hold up if appealed to the courts. The courts can, have, and will overrule Special Permits and Variances issued by BZAs. Obviously this only matters if someone chooses to exercise their right to challenge within 30 days of an approval of a Special Permit or Variance.

The legal precedents you're referring to are for variances, not special permits. The strict limitations are only for variances. And even then, the precedents are taken as strictly as you've implied.

The BZA isn't obligated to grant them, but they need to apply the law fairly. The issue being addressed would be the 6 inches, not the height. If they've always granted permits in such cases (and I don't know if they have), it would be hard for them to find a justification not to in this case. Even if you think the height has a significant impact on the neighbor, the difference between those 6 inches is minor.

The thing is, every case is different from other cases. You can’t necessarily rely on how other cases were decided unless they were very firmly on all fours with this case. The board will look at the individual facts about each case.

(The post you’re replying to doesn’t say anything about height- did you intend to reply to this post or a different one?)

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:The plans must have showed the new construction within the setback bounds. That’s why the county approved them without a variance or special permit. Neighbors are notified during those processes so that they can express their opinions. In the interview the neighbors said they received no notice. Therefore, I believe the plans conformed with the county’s building regulations and setback requirements.

I don't think anyone has claimed that they didn't.

Someone up above claimed the approved plans contained the error and the homeowner proceeded with the plans as approved, so it is not the homeowner’s fault.

3) The approved plan, despite already containing the measurement error, provides a solid, albeit not definitely, basis to argue the report was not fully self inflicted. (Which doesn't seem to be a key point anyway if this isn't a variance.)

That was me. Read what you just repeated. I said the submitted plan included the error.

I wasn't addressing who's legally at fault. I was addressing whether the "self-inflicted" precedent applies here. And there's a very plausible argument it doesn't. That's not the same thing as saying the county is legally at fault.

No one is saying that the county is at fault. The quote above says that the approved plans contained the measurement error, which provides a basis to argue that the error was not “self inflicted.” Logically it follows that if the error was not inflicted by the homeowner, he is not at fault.

In another post I asked if the measurements on the plan submitted showed that the wall crossed over into the setback and there was at least one reply saying that the plans did not show that. Is that not the case? It would be interesting to see exactly what the county approved.

You're hung up on trying to determine "fault" rather than whether or not this is a sort of mistake that would prevent the homeowner from seeking a variance (which, again, they probably don't even need to do in this case).

Let me try to rephrase. The plans submitted to the county contained an error. Those plans were subsequently approved.

Virginia law precludes individuals from seeking variances for purely self-inflicted hardships, but a setback encroachment that arises through a good-faith reliance on an approved plan is not a purely self-created hardship in the sense addressed by legal precedents. Basically, the county bears some of the blame.

Again, this probably moot anyway. The homeowner probably doesn't need a true variance.

Maybe the use of the word “fault” is confusing the issue. We are saying the same thing: that if the plans clearly showed that the measurements violated the setback and the county approved said plans, then the homeowner believed there was no error in proceeding.

On the other hand, if the submitted plans showed adherence to the 8 foot setback, then the county approved plans that appeared to comply with the setback rules. In that case, the homeowner did create the problem by having a foundation poured without first having a survey done that ascertained exactly where all the pertinent property lines were located.

Are approved plans available to the public?

What are your legal reasons for believing that the homeowner does not need to apply for a variance, rather than a special permit?

Because this one of the things a special permit can address:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2582#secid-2582

[Anonymous]

Sorry, wrong link. Find subsection 4:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?tocid=001.009.001#secid-2265

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:The plans must have showed the new construction within the setback bounds. That’s why the county approved them without a variance or special permit. Neighbors are notified during those processes so that they can express their opinions. In the interview the neighbors said they received no notice. Therefore, I believe the plans conformed with the county’s building regulations and setback requirements.

I don't think anyone has claimed that they didn't.

Someone up above claimed the approved plans contained the error and the homeowner proceeded with the plans as approved, so it is not the homeowner’s fault.

3) The approved plan, despite already containing the measurement error, provides a solid, albeit not definitely, basis to argue the report was not fully self inflicted. (Which doesn't seem to be a key point anyway if this isn't a variance.)

That was me. Read what you just repeated. I said the submitted plan included the error.

I wasn't addressing who's legally at fault. I was addressing whether the "self-inflicted" precedent applies here. And there's a very plausible argument it doesn't. That's not the same thing as saying the county is legally at fault.

No one is saying that the county is at fault. The quote above says that the approved plans contained the measurement error, which provides a basis to argue that the error was not “self inflicted.” Logically it follows that if the error was not inflicted by the homeowner, he is not at fault.

In another post I asked if the measurements on the plan submitted showed that the wall crossed over into the setback and there was at least one reply saying that the plans did not show that. Is that not the case? It would be interesting to see exactly what the county approved.

You're hung up on trying to determine "fault" rather than whether or not this is a sort of mistake that would prevent the homeowner from seeking a variance (which, again, they probably don't even need to do in this case).

Let me try to rephrase. The plans submitted to the county contained an error. Those plans were subsequently approved.

Virginia law precludes individuals from seeking variances for purely self-inflicted hardships, but a setback encroachment that arises through a good-faith reliance on an approved plan is not a purely self-created hardship in the sense addressed by legal precedents. Basically, the county bears some of the blame.

Again, this probably moot anyway. The homeowner probably doesn't need a true variance.

Maybe the use of the word “fault” is confusing the issue. We are saying the same thing: that if the plans clearly showed that the measurements violated the setback and the county approved said plans, then the homeowner believed there was no error in proceeding.

On the other hand, if the submitted plans showed adherence to the 8 foot setback, then the county approved plans that appeared to comply with the setback rules. In that case, the homeowner did create the problem by having a foundation poured without first having a survey done that ascertained exactly where all the pertinent property lines were located.

Are approved plans available to the public?

What are your legal reasons for believing that the homeowner does not need to apply for a variance, rather than a special permit?

Because this one of the things a special permit can address:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2582#secid-2582

Yes, but so can a variance. So what are the reasons you think a special permit is more applicable than a variance?

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:The plans must have showed the new construction within the setback bounds. That’s why the county approved them without a variance or special permit. Neighbors are notified during those processes so that they can express their opinions. In the interview the neighbors said they received no notice. Therefore, I believe the plans conformed with the county’s building regulations and setback requirements.

I don't think anyone has claimed that they didn't.

Someone up above claimed the approved plans contained the error and the homeowner proceeded with the plans as approved, so it is not the homeowner’s fault.

3) The approved plan, despite already containing the measurement error, provides a solid, albeit not definitely, basis to argue the report was not fully self inflicted. (Which doesn't seem to be a key point anyway if this isn't a variance.)

That was me. Read what you just repeated. I said the submitted plan included the error.

I wasn't addressing who's legally at fault. I was addressing whether the "self-inflicted" precedent applies here. And there's a very plausible argument it doesn't. That's not the same thing as saying the county is legally at fault.

No one is saying that the county is at fault. The quote above says that the approved plans contained the measurement error, which provides a basis to argue that the error was not “self inflicted.” Logically it follows that if the error was not inflicted by the homeowner, he is not at fault.

In another post I asked if the measurements on the plan submitted showed that the wall crossed over into the setback and there was at least one reply saying that the plans did not show that. Is that not the case? It would be interesting to see exactly what the county approved.

You're hung up on trying to determine "fault" rather than whether or not this is a sort of mistake that would prevent the homeowner from seeking a variance (which, again, they probably don't even need to do in this case).

Let me try to rephrase. The plans submitted to the county contained an error. Those plans were subsequently approved.

Virginia law precludes individuals from seeking variances for purely self-inflicted hardships, but a setback encroachment that arises through a good-faith reliance on an approved plan is not a purely self-created hardship in the sense addressed by legal precedents. Basically, the county bears some of the blame.

Again, this probably moot anyway. The homeowner probably doesn't need a true variance.

Maybe the use of the word “fault” is confusing the issue. We are saying the same thing: that if the plans clearly showed that the measurements violated the setback and the county approved said plans, then the homeowner believed there was no error in proceeding.

On the other hand, if the submitted plans showed adherence to the 8 foot setback, then the county approved plans that appeared to comply with the setback rules. In that case, the homeowner did create the problem by having a foundation poured without first having a survey done that ascertained exactly where all the pertinent property lines were located.

Are approved plans available to the public?

What are your legal reasons for believing that the homeowner does not need to apply for a variance, rather than a special permit?

Because this one of the things a special permit can address:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2582#secid-2582

Yes, but so can a variance. So what are the reasons you think a special permit is more applicable than a variance?

I'm not a lawyer, but it seems like you'd want to ask for the easier thing. That's what I'd do, at least.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:The plans must have showed the new construction within the setback bounds. That’s why the county approved them without a variance or special permit. Neighbors are notified during those processes so that they can express their opinions. In the interview the neighbors said they received no notice. Therefore, I believe the plans conformed with the county’s building regulations and setback requirements.

I don't think anyone has claimed that they didn't.

Someone up above claimed the approved plans contained the error and the homeowner proceeded with the plans as approved, so it is not the homeowner’s fault.

3) The approved plan, despite already containing the measurement error, provides a solid, albeit not definitely, basis to argue the report was not fully self inflicted. (Which doesn't seem to be a key point anyway if this isn't a variance.)

That was me. Read what you just repeated. I said the submitted plan included the error.

I wasn't addressing who's legally at fault. I was addressing whether the "self-inflicted" precedent applies here. And there's a very plausible argument it doesn't. That's not the same thing as saying the county is legally at fault.

No one is saying that the county is at fault. The quote above says that the approved plans contained the measurement error, which provides a basis to argue that the error was not “self inflicted.” Logically it follows that if the error was not inflicted by the homeowner, he is not at fault.

In another post I asked if the measurements on the plan submitted showed that the wall crossed over into the setback and there was at least one reply saying that the plans did not show that. Is that not the case? It would be interesting to see exactly what the county approved.

You're hung up on trying to determine "fault" rather than whether or not this is a sort of mistake that would prevent the homeowner from seeking a variance (which, again, they probably don't even need to do in this case).

Let me try to rephrase. The plans submitted to the county contained an error. Those plans were subsequently approved.

Virginia law precludes individuals from seeking variances for purely self-inflicted hardships, but a setback encroachment that arises through a good-faith reliance on an approved plan is not a purely self-created hardship in the sense addressed by legal precedents. Basically, the county bears some of the blame.

Again, this probably moot anyway. The homeowner probably doesn't need a true variance.

Maybe the use of the word “fault” is confusing the issue. We are saying the same thing: that if the plans clearly showed that the measurements violated the setback and the county approved said plans, then the homeowner believed there was no error in proceeding.

On the other hand, if the submitted plans showed adherence to the 8 foot setback, then the county approved plans that appeared to comply with the setback rules. In that case, the homeowner did create the problem by having a foundation poured without first having a survey done that ascertained exactly where all the pertinent property lines were located.

Are approved plans available to the public?

What are your legal reasons for believing that the homeowner does not need to apply for a variance, rather than a special permit?

Because this one of the things a special permit can address:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2582#secid-2582

Yes, but so can a variance. So what are the reasons you think a special permit is more applicable than a variance?

I'm not a lawyer, but it seems like you'd want to ask for the easier thing. That's what I'd do, at least.

What about a special permit is easier? What are the requirements to file for a special permit?

[Anonymous]

So much speculation on this thread. When should we expect to hear about a concrete development in this case? Is there a deadline the county and/or the homeowner is facing?

[Anonymous]

Anonymous wrote:

Anonymous wrote:Except the homeowner is the GC. The homeowner was responsible for the plans.

For these purposes, it doesn't matter. It would still be or not be a "self-inflicted hardship" for the purposes of seeking a variance (although conceivably the GC could be legally liable for the damages). The point is basically that the county picked up some responsibility by approving the plan.

Logically, then no homeowner needs to do a survey. Draw up your plans with your best guess, submit them to county and wait for the county to do a survey. If the county doesn't catch your mistake, build as fast as you can.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Except the homeowner is the GC. The homeowner was responsible for the plans.

For these purposes, it doesn't matter. It would still be or not be a "self-inflicted hardship" for the purposes of seeking a variance (although conceivably the GC could be legally liable for the damages). The point is basically that the county picked up some responsibility by approving the plan.

Logically, then no homeowner needs to do a survey. Draw up your plans with your best guess, submit them to county and wait for the county to do a survey. If the county doesn't catch your mistake, build as fast as you can.

Except for all the money you going through this process. You're also going to need a good story justifying how you came up with the error. And you're going to need a situation where the impact of the error is negligible on your neighbor.